Much has been made of the University’s decision to follow the legal advice it received to grant the accommodation request. Commentators on both the political left and the right have all lambasted York for its position. York has be called all sorts of terrible names. York’s decision to err on the side of respecting the law has created a wicked alliance of Ford Nation, who would like to abolish the Human Rights Code altogether, and progressives who claim to want stronger human rights laws. Most of the yelling in the media has been from non-lawyers who know little about what the Code actually requires and are just outraged by the particular religious belief in this case. Their argument is that York should have defied the legal opinion that concluded accommodation was required in this case, in order to take a stand against a sexist religious belief.

Professor Michael Lynk of Western’s Faculty of Law is one of Canada’s leading Human Rights Code and ‘duty to accommodate’ experts. He has been a labour arbitrator for many years and has decided many accommodation cases, and he is (literally) writing the book (forthcoming with Irwin Publishing) on the duty to accommodate in Canada. I asked Michael to weigh in on this case, to explain whether he believes on the facts as we know them, the Human Rights Code would have required York University to grant the accommodation to this student. Here is Professor Lynk’s opinion in this Guest Blog.

Over the past month, a vigourous public debate on the limits of accommodation has been conducted around the legality and morality of allowing a student at York University with

Professor Michael Lynk (Western)

orthodox religious beliefs to be excused from attending an in-class session because female students were going to be present. The student was enrolled in an on-line sociology course, which carried the requirement that students had to attend one in-class session. The course professor denied the student’s request for an accommodation, stating that this would offend gender equality. In turn, some senior administrators at York University disagreed with the professor, stating that the student’s request triggered the right to an accommodation under Ontario’s human rights legislation.

A national debate ensued. I have read and listened to a number of perspectives in the print and broadcast media, as well as lots of commentary on the blogosphere. Some of the views – from both sides – were thoughtful and well-argued, but lots of the commentary generated much more heat than light.

David Doorey has kindly asked me to contribute my views on this issue, from the perspective of a legal academic who writes regularly on the topic of human rights accommodation. Here is my contribution:

Let us all first agree that the unequal treatment of women, or any other protected group, is abhorrent, and contrary to both our democratic values and our laws.

Let us also agree that in a modern liberal democracy that cherishes secularism, but which also recognizes and entrenches religious rights (in both our constitution and our human rights codes), we will experience clashes between different rights from time to time. Our operating principle is that these protected constitutional and human rights are not hierarchical. Rather, they enjoy equal standing with each other. When they clash, as commonly happens, our modern legal approach is to balance these rights with each other in a way that respects both of the rights and also minimizes the adverse results of the clash. While this does not always produce results that one likes, this appears to be the most equitable way of resolving these kinds of inevitable clashes.

In our society, we acknowledge that, when we balance equal and competing rights, something gives on both sides. The test revolves around the degree of harm involved. With respect to religious rights, we do this in a myriad of ways. In our laws, for example, we permit churches and other religious organizations that oppose equal rights for gays and lesbians not to be forced to perform same-sex marriages. On an individual basis, we would likely allow a marriage commissioner who was a devote Catholic (or Muslim or some other religious faith) to be accommodated by not being required to perform a state marriage ceremony that was against his/her religious beliefs, if another marriage commissioner could be found who would perform the ceremony. Only if no other commissioner would be found to perform the ceremony would the undue hardship level be reached, and the commissioner with the religious beliefs would then be required to choose between one’s faith and one’s job. The same-sex couple who wished to be married might legitimately feel that their dignity was affected by the claim for accommodation by the original commissioner (assuming that they found out about it), but the overall harm would not be significant in the course of balancing the two constitutional/human rights. Similarly, we would likely allow a police officer who was a strong Catholic (or some other religious faith with a doctrinal opposition to abortion) to legitimately refuse an assignment to guard an abortion clinic, if an accommodation could be found by reassigning him/her elsewhere and another police officer could be found who would take the assignment. (However, this example may not apply if the assignment was to dispatch this police officer with the religious objection to abortion to protect the clinic against an unexpected emergency attack, if that officer was the closest officer in the vicinity).

In order to trigger a legitimate claim for human rights protection via the religious belief ground, the York student would bear the initial onus to establish that his belief –“I cannot mingle with women on religious grounds” – can properly fit within the human rights ground (“creed”). How do we test a person’s religious beliefs to ensure that he or she qualifies for human rights or Charter protection? This is not an easy question. Some have argued that there should be no objective litmus test, and all that a claimant should have to do is proclaim that his or her belief is based on an honest and subjective reading of the guiding religious doctrine or source in order to acquire legal protection. Others have maintained that the claimant should have to show an objective basis for the particular belief in the religious scripture of his or her faith in order to qualify. Currently, in most circumstances involving religious belief and accommodation, we appear to apply a hybrid test in Canada, which combines a mixture of the claimant’s subjective beliefs with an objective link to the leading religious texts of the particular faith. Let us assume that the student at the centre of the York University controversy met this prevailing test.

Applying this approach, I think that the accommodation that was recommended by the decision-makers at York University – that he should be excused from attending the in-class session because his religious beliefs forbade him from mingling with women – was likely the legal as well as the appropriate step to take.

(From the media coverage of the issue, it is my understanding that this accommodation was never put into practice because the student eventually agreed to come to the in-class session). The student would have been accommodated as per his human right – his religious beliefs – in a manner that minimized the impact on the human rights of others. As I understand the facts, if he had been excused from attending the in-class session as an accommodation, this would not have affected the right of any of the other students in the course, including the female students, from participating in the session. While a dignity issue might have arisen, no other obvious right would have been infringed.

This is what the balancing of rights involves. When accommodating persons with disabilities, we do not insist on perfect safety standards (Grismer and Meiorin, two 1999 decisions from the Supreme Court of Canada); rather the law tells us that we are required to permit a tolerable degree of risk, where appropriate, when dealing with safety so as to accomplish the accommodation. That’s why, for example, we would allow persons with sight impairments to bring a seeing-eye dog into a restaurant, notwithstanding our justifiably strict laws on safety dealing with animals in restaurants, in order to protect public health.

However, if the York student at the centre of the controversy had said: “I cannot be in the same class as women, so therefore organize a class for me that is without women”, that would clearly reach the stage of intolerable harm and go beyond anything that the law of accommodation would permit. One can name a number of abhorrent cultural practices that some have attempted to justify through religious doctrines which human rights law would not protect because of the intolerable harm that is caused.

Let me be clear that I make, and I think the law makes, a significant distinction between accommodating the religious beliefs of individuals, and the practices of institutions, whether private or public. For example, we are, rightly, required to accommodate the human rights of individuals, up to the point of undue hardship, which may mean accommodating persons with distinct religious views that may clash with our sense of social equality. This might include the accommodation of individuals who work in the public service – such as the examples I cited above of marriage commissioners or police officers, because we don’t make a per se distinction between private sector and public sector employees regarding access to the duty to accommodate.

However, we rightly demand that public and private institutions are to be held to high standards that would respect and protect human rights of all, while allowing individual accommodations where possible. Obviously, institutions have a dual responsibility that they have to balance and keep in mind: providing substantive equality rights to those they serve or come into contact with, while respecting and accommodating the human rights of their employees or clients.

If the law did require York to accommodate the religious belief in this case, as Professor Lynk and the legal opinion York received concluded, then it seems to me two interesting issues arise:

1. Does that law strike an appropriate balance between gender and religious rights?

If not, then how should the law be changed? Should the law say that religious accommodation should never be granted if that accommodation would conflict with another protected equality right?

2. Should employers and institutions (like York University) engage in civil disobedience by violating the Human Rights Code in order to make a public statement that they disagree with a particular religious belief?

It seems to me that is what most of the critiques of York’s position are saying: “It was outrageous for York to accept the expert legal opinion it received because the law itself is dumb.” Was York right or wrong to follow the legal advice that the Code required accommodation in this particular case?

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One Response to Guest Blog by Michael Lynk: York University Made Correct Call on Accommodation

I think the fact that other students were accommodated by not having to attend the in-person group assignment is an important fact that somehow the media didn’t report. These accommodations may have been on non-human rights grounds or even on other grounds set out in the Code (I am thinking family status, perhaps; childcare issues, for example). The difficulty then is how does one argue there would be an undue hardship by accommodating an individual on religious grounds if others were accommodated on other grounds? However, I believe that the duty to accommodate on religious grounds has to be based on a sincerely held belief. The fact that this student attended the session anyway may say something about whether he held a sicerely held belief, but I don’t know. Interesting debate, for sure.